Exculpatory evidence nondisclosure violates your Brady and Fifth Amendment Due Process rights when that evidence is sufficiently material to the defense- Lessons from Alec Baldwin’s involuntary manslaughter dismissal

Exculpatory evidence (EE) is critical for your Virginia criminal defense attorney to pursue. As a Fairfax criminal lawyer, I obtain as much relevant evidence for my clients, including Brady/ EE. The Fairfax prosecutor’s office received a huge influx of funding in the middle of the Covid pandemic when the chief commonwealth’s attorney declined for his office to participate in most non-Virginia DUI / non-sexual assault / non-domestic crime adult misdemeanor prosecutions during many months that the office claimed to have insufficient funding to do so. Particularly when a prosecutor’s office and law enforcement agencies have the funding and humanpower to provide criminal defense lawyers with Brady evidence, that is all the more a reason not to expect Brady violations. Even with the comparatively well funded federal prosecutors offices, Rule 5 of the federal rules of criminal procedure require the judge to remind the prosecution of its Brady obligations, as follows: “In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland,  373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.” Fed. R. Crim. Proc. 5(f). For the misdemeanors that various Virginia prosecutors’ offices still do not prosecute (for instance, public intoxication in the county to the east of Fairfax, and reckless driving with lower speeds in that same county and many other parts of Virginia), how can criminal defense lawyers expect to achieve Brady compliance from the police when prosecutors are not even involved in the prosecution?

Hollywood as a lesson in exculpatory evidence

By sheer happenstance, the night before Alec Baldwin’s legal team convinced the trial judge on July 12, 2024, to dismiss Baldwin’s involuntary manslaughter prosecution with prejudice — meaning for the prosecution never to return to court — my son and I started watching Just Mercy, about criminal defense and civil rights hero Bryan Stevenson’s relentless work for death row inmates, and Bryan’s ultimate and spectacular achievement — after plenty of sweat and tears — of a retrial for Walter “Johnny D.” McMillian, and dismissal of the prosecution before a retrial was even commenced. When I mentioned to my son that in a few days I will be interviewing criminal defense and civil rights hero Stephen B. Bright — a mentor to Bryan Stevenson — and that I had met both of them in 1991 at a reception at the ACLU after a capital punishment oral argument at the Supreme Court, and been inspired by both to continue the pace of my transition to criminal defense work from being at a corporate law firm, my son was all the more fascinated seeing that we had a little over two years earlier made a defining visit to the Legacy Museum of the Equal Justice Initiative that Bryan had founded. Not yet having read the Just Mercy  book, I did find an article asserting to have gone into detail to check the accuracy of the film, finding it mostly accurate. Moreover, the starkness of the Brady violations that led to Walter McMillian’s winning his freedom — particularly the nondisclosure of the sole purported eyewitness’s initial claim of no knowledge about the incident (he recanted his testimony that led to McMillian’s capital conviction) are laid bare in the appellate opinion granting him a retrial after the judge at the trial level denied such Brady/ exculpatory evidence relief. McMillian v. Alabama, 616 So.2d 933 (Ala. Crim. App 1993). This means that when I met Bryan Stevenson, he was already beyond midway through his successful fight for McMillian’s freedom.

Just Mercy is a must watch to hammer home the wide gap that too often exists between prosecutions and justice

The Just Mercy film is a vital enough watch as is to make clear how essential it is for police and prosecutors to honor their Brady / exculpatory evidence obligations. However, much more is at play in this film to make one cause for pause, including: In an early scene, soon after Bryan Stevenson arrives in Alabama to start his work, a prison guard denies him visitation with his clients unless he strips bare. We learn that defense witness after defense witness at McMillian’s capital murder trial testified that at the time of the homicide, McMillian was far away with them at a church fundraising fish fry event. I learned separately that the trial judge apparently switched the trial from McMillian’s county with a 40% African American jury pool to a neighboring county with fewer than 15% African Americans. McMillian was placed on death row before even being convicted. McMillian’s jury recommended a non-capital sentence, but his trial judge — aptly named Robert E. Lee Key — imposed a death sentence anyway, in this state that (along with the two other that at the time allowed the practice) ultimately ultimately got rid of a judge’s ability to impose the death penalty when the jury votes against it. Especially bone chilling is the scene where police stop Bryan’s car at night and for no good reason, point a gun at his head, and check the passenger seat holding client-related documents. (A fact-check article depicts this instead as a heavy-handed police reply to a caller’s complaint that Bryan looked suspicious sitting in his parked car at night, when apparently he was simply listening to what was on the radio.) How much the hostility by police and jailer(s) towards Bryan had to do with his being African American is worth considering.

How did Alec Baldwin’s criminal defense lawyers obtain a final dismissal of his prosecution?

The court-determined Brady violation in Alec Baldwin’s prosecution was nowhere near as earth shattering as with Walter McMillian’s win involving nondisclosure of Brady / exculpatory evidence, which for Baldwin was the prosecutor’s nondisclosure of ammunition that was turned over to police, which purportedly related to the case and arguably may have been beneficial to argue the source of the live ammunition that caused the death, consistent with establishing reasonable doubt/ innocence as to Baldwin. Whether or not the nondisclosure was inadvertent, Baldwin’s case underlines the necessity for police and prosecutors to be meticulous in documenting and timely turning over Brady evidence. Police and prosecutors also are wise to err on the side of considering evidence as possible or actual Brady material than not.

What do Walter McMillian’s and Alec Baldwin’s Brady / exculpatory evidence victories say about what you need in your criminal defense lawyer?

Brian Stevenson did not find the Brady / exculpatory evidence in Walter McMillian’s case without relentlessly using a fine tooth comb. Alec Baldwin would not have gotten his case dismissed had his legal team not pushed the Brady issue. Before you hire a Virginia criminal lawyer, make sure you satisfy yourself not only that your potential attorney understands your Brady / EE rights, but that s/he will be relentless in defending you in this and all essential areas of your defense. This is your life, liberty, reputation, and potential collateral damage at risk. Any lawyer who takes offense at such diplomatically delivered questions from you has delivered you a red flag.

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing your best defense against Virginia felony, misdemeanor and DUI prosecutions. You will learn that early on during your free initial strictly confidential in-person consultation with Jon Katz about your court-pending prosecution. Usually Jon will be able to visit with you within a business day of your calling for an appointment with him, at 703-383-1100, info@BeatTheProsecution.com and (by text) at 571-406-7268.